Supreme Court

Nation-states, like four-year-olds, find it very hard to admit they are in the wrong and apologise. Adult intervention often helps, but all Japan and South Korea have is US Secretary of State Mike Pompeo (who tried and failed to mediate a week ago in Bangkok). So the trade war between the two grows and festers.

There are obvious similarities with the trade war that Donald Trump is waging against China, with Japan’s Prime Minister Shinzo Abe playing the Trump role: blustering bully with no clear game plan. Like the Trump trade war, too, the Japan-South Korea confrontation threatens to destabilise both East Asian security arrangements and the global market.

Yet the confrontation between Tokyo and Seoul is not really about trade at all. It’s about the difficult history of relations between an ex-imperial power, Japan, and its former colony, Korea.

Japan is existentially in the wrong in this relationship, because it seized control of Korea in 1905 and ruled it, sometimes with great brutality, until it was defeated in the Second World War in 1945. But Tokyo doesn’t like to be reminded of all that, and claims that it discharged whatever moral debt it owed when it paid $500 million to Seoul in 1965.

Koreans take a different view, of course, but the truth is that the victims of Japan’s wartime behaviour were sold out by their own government. $500 million was a lot of money, more than the South Korean government’s entire annual budget. The newly installed military-led regime in South Korea needed the money and accepted Japan’s terms.

Almost all the money went to building up South Korea’s new export industries. Japan offered to pay compensation directly to Korean individuals who had suffered forced labour and other injustices during the Second World War, but Seoul preferred to take a lump sum (and spend almost all the money on development). Many of the victims got little or nothing.

The resentment this caused was easily diverted onto Japan, which had driven a hard bargain and failed to accompany the compensation with an apology. Anti-Japanese hostility occasionally boiled over in notorious cases like the ‘comfort women’ (young Korean women who had been abducted to serve as sexual slaves for the Japanese army), but it is always bubbling away underneath.

Fast forward to last October, when South Korea’s Supreme Court ruled that the lump-sum, government-to-government deal of 1965 did not cover damages for the mental anguish of individual wartime labourers. Subsequent rulings have authorised South Korean individuals to claim compensation from the Japanese industries that used their labour by forced legal sales of those companies’ assets in South Korea

South Korea’s President Moon Jae-in did not seek this ruling from the Supreme Court, which is entirely independent. The Court was clearly stretching the law almost to breaking point, but in practical political terms he could not disown it.

Japan, on the other hand, was horrified by the ruling. Accepting it would open to door to huge claims for compensation from people who had suffered ‘mental anguish’ from the Japanese occupation in all the other countries Japan invaded between 1937 and 1945. It also felt betrayed: half a century ago it had paid out a lot of money to extinguish any further claims like these.

There has never been much love lost between Japanese and Koreans, but the two countries have almost always managed to keep important issues like trade and national security separate from the emotional flare-ups that make the relationship so fraught. Last month, however, Prime Minister Abe completely lost the plot. He began imposing restrictions on Japanese exports to South Korea.

They are relatively minor restrictions. Three classes of chemicals essential to making semiconducters that South Korea buys from Japan now require export licences. A minor bureaucratic hurdle, unless Japan stops approving the licenses (which it has not done).

More recently Japan has removed South Korea from its ‘whitelist’ of countries that are allowed to buy goods that can be diverted for military use with minimal restrictions. Again, no big deal. Just another little hurdle to cross, meant to rebuke and annoy South Korea, not to cause serious injury.

But it has been very successful in annoying South Koreans, who have spontaneously organised a quite effective boycott of Japanese-made goods. And petty though its origins may be, this confrontation is now raising the prospect that these long established trading partners, both closely allied to the United States and both anxious about China’s rise and the threat of North Korea, are going to have a real trade war.

Which, with help from the bigger trade war Donald Trump started with China, may be enough to tip the world economy into a deep recession.
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To shorten to 725 words, omit paragraph 5. (“Koreans…terms”)

Gwynne Dyer’s new book is ‘Growing Pains: The Future of Democracy (and Work)’.

Donald Trump is a man of his word, and he promised his ‘base’ to build a wall on the US border with Mexico to stop an “invasion of gangs, invasion of drugs, invasion of people.” It turns out that Mexico isn’t willing to pay for it after all, but a promise is a promise. So he has declared a fake ‘national emergency’ to get his hands on the money he needs.

It’s fake because the days when huge numbers of illegal immigrants were trying to come in across that 3,200 km. border are long past. Fifteen years ago it was more than a million and a half people a year. It had fallen to 400,000 by the middle of Barack Obama’s first term in 2010, and has not exceeded that number since.

Half of those 400,000 people are caught while crossing, so let’s just focus on the 200,000, more or less, who currently sneak through the border far from any legal crossing point, and whom a wall might stop. Let’s imagine that it could stop them all.

The predicted cost of the wall is $23 billion, so how much would the United States be spending for each of these would-be border-crossers? Around $11,000 per person, and very, very few of those people are gang members or drug-smugglers; they are just looking for work and a better life. The United States is fully entitled to turn them all away, but this is ridiculous.

The wall is largely symbolic, but it is a very important symbol for Trump. It was one of the key promises he made to the true believers in his ‘base’, and it was striking how angry they got at him when it looked like he would be thwarted by Congress. As Ann Coulter said: “The only national emergency is that our president is an idiot.”

But the ‘national emergency’ will probably do the trick for Trump. It will face all sorts of legal challenges, but the rules for declaring national emergencies are so vague and the precedents so numerous that he will probably win in the courts in the end.

In the meantime, he will have around $8 billion to play with, mostly taken from the military and disaster-relief budgets. It’s only a third of what it would take to build a full border wall, but it will let Trump look busy and persuade the ‘base’ that he is making progress.

So there’s one promise kept, more or less. The other two that really count are his promise to “bring the jobs back” and his commitment to outlaw abortion.

He can’t bring the jobs back because they never left. The vast majority (around 85%) of American manufacturing jobs lost since the turn of the century were killed by automation, not by free trade. But the fantasy statistics about near-full employment pumped out by the government may suffice to keep his base quiet, even if jobs are strangely scarce or low-paying around where they live.

What Trump does need to deliver on is banning abortion. He cannot do that himself, of course, but he promised to appoint ‘pro-life’ justices to the Supreme Court during the 2016 election campaign. He has probably managed to create an anti-abortion majority on the Court by now (although you can never tell with judges). But there is a problem for him and the Republican Party if he delivers on that promise.

47% of white women voted for Donald Trump in 2016, but around half of them were not part of his ‘base’. They were just traditional Republicans who voted as they always did, some of them perhaps holding their noses this time.

If the Supreme Court reversed its historic 1973 Roe vs Wade decision that made abortion legal throughout the United States, a lot of these women would be very cross with Trump and the Republican Party. Given that Trump only won by a hair’s breadth in 2016, he cannot afford to lose their votes.

Therefore he definitely doesn’t need a big win on Roe vs Wade in 2019 if he wants to be re-elected in 2020. Does he know this? It’s his own future at stake here, and he’s usually very alert to developments that might threaten it.

He can’t really control what the Court might decide, but he will be hoping that they just nibble at the fringes of the issue, not reverse Roe vs Wade outright. And the Court is quite likely to do just that, because senior judges hate to overthrow decisions of long standing that enjoy wide acceptance in the society. (Two-thirds of Americans support the current law.)

Trump doesn’t care about the outcome on most issues, probably including this one. He just wants a ‘win’, and he can conjure it up out of the most unpromising material. If the judges make a few minor changes to the law, he will portray it as a triumph and drop the subject.

The real secret of dealing with Trump? Throw him a fish, and he will go away.
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To shorten to 725 words, omit paragraphs 3 and 4. (“Half…ridiculous”)

Gwynne Dyer’s new book is ‘Growing Pains: The Future of Democracy (and Work)’.

You could write a heart-warming fairy-tale about the turbulent events in the island nation of Sri Lanka in the past two months. It would involve a conniving president who abruptly and illegally dismisses the elected prime minister, and replaces him with a corrupt and blood-soaked former despot who was the president’s old boss.

The despot, now claiming to be the real prime minister, tries to strengthen his position by offering members of parliament jobs as ministers in his new government. If enough accept, he would have a majority in the parliament and could claim to be sort of legitimate. But most of the MPs turn down the political bribes on offer, and parliament twice votes to reject his claims.

Finally, after 50 days of chaos, the judges of the Supreme Court say that the president has acted illegally and the ex-despot can’t claim that he is prime minister. At this point the despot resigns and the president grudgingly ‘re-appoints’ the legitimate prime minister. Virtue triumphs, and joy is unconfined. Maybe they even live happily ever after.

It’s an engaging tale, and the basic outlines are true, but in the real world the historical and social context that surrounds the events changes the tone of everything.

Sri Lanka is only ten years away from the end of a brutal civil war that lasted for a quarter-century, and the ‘despot’ is the man who won it by being more brutal than anybody else. His name is Mahinda Rajapaksa.

The war was about race and religion. Most of Sri Lanka’s people speak the Sinhalese language and identify with the Buddhist religion. A minority several million strong, concentrated in the north and east, speak Tamil and are mostly Hindu in religion (with a significant Christian minority). Tamils have been in Sri Lanka for at least 2,000 years, but the Buddhist majority tends to see them as alien and even as newcomers.

The Tamils did well under British colonial rule, when most Buddhist Sinhalese refused to collaborate with their new political masters. There was revenge-taking after independence, when Buddhist-dominated governments removed the official status of the Tamil language and imposed restrictions on higher education for Tamils. There were even anti-Tamil pogroms.

Buddhist intolerance towards non-Buddhist minorities is not unique to Sri Lanka, as the Rohingya minority in Burma can readily attest, but in Sri Lanka the Tamil minority was big enough to fight back. It did so, starting in 1987, in a guerilla and terrorist war that sought an independent Tamil state in the north and east of the island.

Up to 100,000 people died in the war, which ended with an orgy of killing (40,000) in the final five months of battles in 2009. Mahinda Rajapaksa was the president who directed those battles, in which Tamils trying to surrender were often killed, and he emerged from the war as a national hero.

With his populist, nationalist style making him a favourite with the Sinhalese masses, he seemed set for a very long run in power. His government continued to torture and ‘disappear’ opponents, and his family grew rich from corrupt deals. But in 2015 one of his cabinet ministers, Maithripila Sirisena, defected from the government, ran against him for the presidency – and won.

To his credit, Rajapaksa accepted his defeat. Sirisena found a new ally in Ranil Wickremesinghe, whose business-friendly United National Party had won a majority in parliament, and appointed him as prime minister. However, the new allies had little in common and estrangement between them grew.

The key issue that broke the alliance was trade: Sirisena preferred to make deals with China, Wickremesinghe with nearby India. On 25 October Sirisena sacked Wickremesinghe (illegally) and appointed Rajapaksa as prime minister instead.

Wickremesinghe pointed out that Sirisena didn’t have the power to do that and barricaded himself into Temple Trees, the prime minister’s official residence. Rajapaksa couldn’t get enough members of parliament to switch sides. They voted twice to remove Rajapaksa, so Sirisena dismissed parliament and called new elections.

That was illegal too, and the struggle continued until, last week, the Supreme Court ruled that Sirisena could not dissolve parliament. At that point Rajapaksa resigned, and on Monday an angry Sirisena grudgingly swore Wickremesinghe back in as prime minister.

An encouraging outcome, in which parliament, the courts and the general population behaved better than anybody expected, but of course the story is never really over.

Sirisena can constitutionally dismiss the parliament fifteen months from now, and Rajapaksa may well win the next election. Meanwhile Wickremesinghe’s government may be almost paralysed, because relations between Sirisena and him are totally poisonous.

The fairy-tale is to be preferred whenever possible.
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To shorten to 725 words, omit paragraph 7. (“The Tamils…possible”)

Catalonia, the north-eastern region of Spain (population of 7,5 million), declared independence from Spain last Tuesday evening. It was done quite formally, in the regional parliament in Barcelona, with regional president Carles Puigdemont, members of his cabinet and some leaders of other parties signing the independence document.

Independence was “the people’s will”, Puigdemont said, referring to the 90% “yes” vote in the referendum on October 1. He called on all foreign countries and organisations “to recognise the Catalan republic as an independent and sovereign state”. He seemed not the least perturbed by the low rumble of companies moving their headquarters out of Catalonia, nor indeed by the squadrons of pigs flying overhead.

There were only three little things that detracted from the joy of the occasion. The first was the fact that the Catalan president and his friends had no constitutional authority to separate Catalonia from Spain, or even to hold the referendum. It is a unilateral declaration of independence, and it is highly unlikely that either the national government in Madrid or foreign governments will recognise it as legal.

Indeed, Germany’s Chancellor Angela Merkel has “affirmed her backing for the unity of Spain” in a phone call to Spanish Prime Minister Mariano Rajoy. The French government has said that a Catalan declaration of independence “would not be recognised” and other members of the European Union (EU) from Ireland to Cyprus have said the same.

Many have separatist movements among their own minorities and they do not want to encourage them.

The second problem is that the referendum in Catalonia was a fake. The mere 43% of the population who voted in it almost exactly equalled the 44% of residents who wanted independence according to the latest opinion poll. The same poll put the number of people who wanted to stay in Spain in the majority, at 48%, as have all other polls in the past few years — but very few of the anti-independence people voted in the referendum.

This was no mere oversight. It lay at the very heart of the separatists’ strategy for declaring independence though only a minority of the population want it. They already knew from an “advisory” referendum two years ago that only pro-independence supporters would vote in it, while supporters of staying in Spain would boycott it. The earlier referendum also delivered a huge majority for independence — on the same low turn-out.

So hold another referendum, but this time say it is for keeps. Separatists will vote yes, anti-independence voters will abstain (because Madrid says it is illegal and urges them not to vote in it). Then use your fake 90% victory to claim that you embody the “people’s will”, and whisk Catalonia out of Spain before they know what hit them.

Which brings us to the third problem: if Puigdemont acts on the October 10 declaration and actually takes Catalonia out of Spain, it is going to be very lonely out there. Not only Madrid but other European governments understand the game the Catalan separatists have been playing.

The EU has made it clear that if Catalonia splits from Spain, the region would cease to be part of the EU and would have to re-apply for membership (which Spain could veto even if everybody else said yes). That has huge implications for the Catalan economy, since two-thirds of Catalonia’s exports go to EU countries.

Like the United Kingdom (which did at least hold an inclusive referendum that the “leavers” won with a 51,9% majority), Catalonia’s economy will go over a cliff-edge if the region leaves the EU without a negotiated deal that preserves most of its existing trading relationship. And that negotiation cannot even begin without Spain’s assent.

Spain also bears much blame for the present mess, since its inflexible constitution forbids independence for any of its regions. (That is why the referendum was illegal.) The present Spanish government made matters worse by getting the Supreme Court to cancel concessions that a previous government had made on further autonomy for Catalonia.

So you can understand the frustration felt by Catalan separatists, but the truth is that they did not have majority support for their independence project and have used illegitimate tactics to get around that inconvenient fact. No wonder Puigdemont has declared that he is “suspending the effects of the declaration of independence” for a few weeks, for more talks with the Madrid government.

The Spanish government is not going to negotiate on the basis of those referendum results and Rajoy has now directly asked Puigdemont whether he has declared independence or not. If he says he has, then Madrid will almost certainly activate Article 155 of the constitution, suspend Catalonia’s autonomy and take direct control of the region.

From there to the first violence against the “Spanish occupation” should not take very long. When you live in a country that has had three civil wars in the past 180 years, you should be more careful.